remanded EB-2 Case: Unknown

Date: 
IN RE: 
OCT 1 6 2012 
Pctitioncr: 
lkneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Sccurit~· 
U,S. Citizen~hir dfld lrnrnigr,llioll Service" 
Auminislrati,e Arreah Orrice (AA() 
20 Mas~achllsc\L" A\'L'" N.W., MS 2()t}() 
Washington. ])(. 2()S29-2()9() 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 20l(b)(2) of the Immigration and 
Nationality Act, R USc. ~ 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case, All of the documents 
related to this mattcr have becn returned to the office that originally decided your case. Please he advised that 
any further inquiry that you might have concerning your case must be made 10 thai office. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gm/ 
Page 2 
DISCUSSION: The Director, Nebraska Service Center (NSC), denied the immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
rejected as untimely filed. The AAO will return the matter to the director for consideration as a 
motion to reopen and reconsider. 
[n order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the 
affected party or the attorney or representative of record must file the complete appeal within 30 
days of service of the unfavorable decision. [f the decision was mailed, the appeal must be filed 
within 33 days. See H C.F.R. § 103.8(b). The date of filing is not the date of mailing, but the date of 
actual receipt. See H C.F.R. § 103.2(a)(7)(i). 
The record indicates that the service center director issued the decision on August 20, 20 II. It is 
noted that the service center director properly gave notice to the petitioner that it had 33 days to file 
the appeal. Neither the Immigration and Nationality Act nor the pertinent regulations grant the AAO 
authority to extend this time limit. 
Although counsel dated the Form [-290B September 20, 2011, it was not received by the service 
center until September 23, 201 1, or 34 days after the decision was issued. Accordingly, the appeal 
was untimely filed. 
The regulation at H C.F.R. § 103.3(a)(2)(v)(S)(2) states that, if an untimely appeal meets the 
requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, 
and a decision must be made on the merits of the case. The official having jurisdiction over a motion 
is the official who made the last decision in the proceeding, in this case the Director of the Nebraska 
Service Center. See H C.F.R. § 103.S(a)(1)(ii). 
The matter will therefore be returned to the director. If the director determines that the late appeal 
meets the requirements of a motion, the motion shall be granted and a new decision will be issued. 
As the appeal was untimely filed, the appeal must be rejected. 
ORDER: The appeal is rejected.